Delhi District Court
State vs Mr.Gaurav Saini. -:: Page 11 Of on 13 December, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE POCSO ACT,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56467/2016.
Old Sessions Case Number : 208/2014.
State
versus
Mr.Gaurav Saini
Son of Mr.Om Parkash Saini
Resident of K-1/144, Mohan Garden,
Uttam Nagar, Delhi.
First Information Report Number : 54/2014.
Police Station : Uttam Nagar
Under sections 363/366 of the Indian Penal Code
and under section 12 of the Protection of Children
from Sexual Offences Act, 2012.
Date of filing of the charge sheet : 22.09.2014.
Arguments concluded on : 13.12.2017.
Date of judgment : 13.12.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused on bail with counsel, Mr. Jagdish Chandra.
Prosecutrix with her parents.
Investigation Officer Retired SI Braham Prakash.
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JUDGMENT
New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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1. Mr.Gaurav Saini, the accused, has been charge sheeted by Police Station Uttam Nagar for the offences under sections 363 and 366 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Gaurav Saini, has been prosecuted on the allegations that on 06.01.2014 at unknown time, he had kidnapped to the prosecutrix (who is a minor girl and who was born on 17.12.1996) from her residence and took her to Jammu with the intention that she may be forced to marry with him. Thereafter, between 06.01.2014 to 30.11.2014, he had repeatedly sexually harassed to the prosecutrix after kidnapping her from residence.
3. The name, age, address and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her. Her father is addressed as Mr.Z, a fictitious identity given to him to protect the identity of the prosecutrix.
4. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 22.09.2014.
5. After hearing arguments, charges for offences under section 363, New Sessions Case Number : 56467/2016.
Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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366 and 376 of the IPC, section 12 of the POCSO Act was framed against accused Mr.Gaurav Saini vide order dated 06.04.2017 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as two (02) witnesses i.e. the prosecutrix as PW1, her father as PW2.
7. The evidence of the prosecutrix as PW1 has been recorded in the Court room as the Vulnerable Witness Deposition Room was being used by another learned Additional Sessions Judge and was not likely to be available. Instead of making the prosecutrix wait for an indefinite period, the evidence of the prosecutrix has been recorded in the Court itself in camera. Her father as PW2 has also been examined in camera.
8. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix.
Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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followed.
9. Preliminary inquiries were made from the prosecutrix and it appeared that she is well oriented and is capable of giving rational answers to questions. She understood the sanctity of oath. The prosecutrix appeared to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
10.The prosecutrix as PW1 has seen accused Mr.Gaurav Saini through the screen. She has identified the accused and deposed that he is her husband and he has not committed any offence. She has deposed that "I know accused Gaurav Saini as he used to reside near my house. I informed my parents about my friendship with accused Gaurav Saini and I also informed my wishes to perform marriage with accused Gaurav Saini. My parents told me that accused Gaurav Saini belongs from different caste and did not do any work. I requested them to consider accused Gaurav Saini for my marriage but they strictly refused and threatened me to kill, if I would insist to marry accused Gaurav Saini. I requested my parents to talk to accused Gaurav Saini and with his parents regarding my marriage but they declined and asked me to forget accused Gaurav Saini. In the night of 05.01.2014 and 06.01.2014, I left my house without informing my parents. I met New Sessions Case Number : 56467/2016.
Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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accused Gaurav Saini, who was standing outside my house then we went to Railway station. Thereafter, we went to Mata Vaishno Devi Temple. We stayed there for about 10 days. We peformed marriage on 23.01.2014 at Arya Samaj Temple, Mukund Pur. We again went to Mata Vaishno Devi Temple. During this period, my father had lodged the present case and he started harassing the parents of accused Gaurav Saini. My father threatened to father of accused Gaurav Saini that if he would not call accused and myself then he (my father) would abduct him. After coming to know these facts from the mother of accused telephonically, I and accused returned to Delhi and came to Tis Hazari Courts".
11.As the prosecutrix (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross-
examined her at length but nothing material for the prosecution has come forth.
12.In her cross examination on behalf of the accused, the prosecutrix (PW1) has deposed that "It is correct that I was above 18 years of age at the time of alleged offence. It is correct that the accused is innocent and has not committed any offence. It is correct that I do not have any grievance against the accused. Vol. I again pray that the accused may be acquitted". She has denied the contents of her statement to the police.
New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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13.The father of the prosecutrix Mr.Z (PW2) has deposed that on 06.01.2014, the prosecutrix left his house without informing anyone. He did not have any suspicion on anyone. After about 4-5 days of leaving of the prosecutrix from his house, he received a phone call of cousin of accused Gaurav Saini. He told him that he was son of paternal uncle (Tau) of Gaurav Saini and then informed him that the prosecutrix and the accused were staying together and got married. Then he went to PS and made complaint (Ex.PW2/A) before the police.
14.PW1 has not deposed an iota of evidence against accused Mr. Gaurav Saini that he committed the offences of kidnapping the prosecutrix and taking her to Jammu with the intention that prosecutrix may be forced to marry with him and repeatedly sexually harassed the prosecutrix. The evidence of the father of the prosecutrix is only hearsay as he did not have any suspicion on anyone and even that is not reliable when the prosecutrix herself has deposed that neither the accused had taken her nor he had raped her. PW2 is a formal witness and is a hearsay witness only.
15.In the circumstances, as the prosecutrix (PW1), who is the star witnesses, has turned hostile and has not supported the prosecution New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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case and more importantly has not assigned any criminal role to the accused and has not deposed anything incriminating against him, the case of the prosecution is neither reliable nor believable.
16.The father of the prosecutrix has also not supported the prosecution case as he has not deposed anything incriminating against the accused.
17.As regards the age of the prosecutrix, it can not be said with the certainty that she was below of 18 years of age as the prosecutrix has deposed her age was lessened in order to secure her admission in school. She has admitted in her cross examination that she was above 18 years of age at the time of commission of the offence.
Her father has admitted that it is possible that she was above 18 years of age at the time of the alleged offence. There is no age proof of the prosecutrix issued by any Municipal Authority or Government Authority, which could have been conclusive proof regarding her date of birth. The father of prosecutrix has also deposed that the date of birth of the prosecutrix in her school record as 17.12.1996 and he do not know the correct date of birth of the prosecutrix. Therefore, it can not be said that the prosecutrix was below 18 years of age at the time of commission of the alleged offence.
New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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18.The statement under section 313 of the Cr.P.C of the accused Mr.Gaurav Saini is dispensed with as there is nothing incriminating against him as the prosecutrix (PW1), who is the star witness, is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State. Even her father has not deposed anything incriminating against the accused.
19.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
20.In the light of the aforesaid nature of deposition of the prosecutrix (PW1), who is the star witness of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the prosecutrix has retracted from her earlier statement and turned hostile. Nothing material for the prosecution has come forth in her cross examination on behalf of the State. She has, in fact, deposed that the accused is innocent and he has not committed any offence against her. Even the father of the prosecutrix has not deposed anything incriminating against the accused. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. New Sessions Case Number : 56467/2016.
Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
21.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
22.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
23.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no New Sessions Case Number : 56467/2016.
Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
24.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Mr.Gaurav Saini. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
25.Consequently, no inference can be drawn that the accused Mr.Gaurav Saini is guilty of the charged offences under sections 363 and 366 of the IPC as well as under section 12 of the POCSO Act.
26.There is no material on record to show that on the allegations that on 06.01.2014 at unknown time, he had kidnapped to the prosecutrix (who is a minor girl and who was born on 17.12.2.1996) from her residence and took her to Jammu with the intention that she may be forced to marry with him. Thereafter, between 06.01.2014 to 30.11.2014, he had repeatedly sexually harassed to the prosecutrix after kidnapping her from residence.
New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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27.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Gaurav Saini for the offences of kidnapping, taking her to Jammu from her residence with the intention that prosecutrix may be forced to marry with him and repeatedly sexually harassed to the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota of evidence that accused Mr.Gaurav Saini has committed any of the charged offences.
28.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Gaurav Saini for the offence under sections 363 and 366 of the IPC as well as under sections 12 of the POCSO Act.
29.Consequently, accused Mr.Gaurav Saini is hereby acquitted of the charges for the offences of kidnapping the prosecutrix and taking her to Jammu from her residence with the intention that prosecutrix may be forced to marry with him and repeatedly sexually harassed to the prosecutrix punishable under sections under sections 363 and 366 of the IPC and under section 12 of New Sessions Case Number : 56467/2016.
Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-
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the POCSO Act.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
30.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
31.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
32.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
33.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 13th day of December, 2017. Additional Sessions Judge-01, Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 56467/2016. Old Sessions Case Number : 208/2014. First Information Report Number : 54/14. Police Station : Uttam Nagar.
Under sections 376/366 of the Indian Penal Code. and under section 12 of the POCSO Act. State versus Mr.Gaurav Saini. -:: Page 11 of 12 ::-